Gillee and Gillee

FAMILY COURT OF AUSTRALIA

GILLEE & GILLEE

[2010] FamCA 1141

FAMILY LAW – CHILDREN – BEST INTERESTS – Female child six years – Allegations of sexual abuse of child by father – Finding no sexual abuse – Allegation of unacceptable risk of sexual abuse of child by father – Finding no unacceptable risk – Finding mother has genuinely held belief that such a risk exists – Finding that will have a significant impact on her capacity to parent the child and so impinge on the child’s best interests – Final orders made as to parental responsibility and other matters – Interim orders made for child to spend graduated day time with father supervised by father’s partner – Matter to be reassessed in November 2011 if parties are by then not able to agree consent final orders

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 65DAC

A v A (1998) FLC 92-800
Aldridge & Keaton [2009] FamCAFC 229
B and B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
Fitzpatrick & Fitzpatrick [2005] FamCA 534
G & C [2006] FamCA 994
Hilton v Allen (1940) 63 CLR 691
Johnson & Page (2007) FLC 93-344
Lindsay & Baker (2007) FLC 93-347
M and M (1988) 166 CLR 69
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405
N & S (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Reifek v McElroy (1965) 112 CLR 517
Russell & Close [1993] FamCA 62
WK v SR (1997) FLC 92-787

APPLICANT:

Mr Gillee

RESPONDENT:

Ms Gillee

FILE NUMBER:

BRC

10918

2007

DATE DELIVERED:

17 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

12, 13, 14 , 15 and 16 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lyons

SOLICITOR FOR THE APPLICANT:

South Burnett Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodges

SOLICITOR FOR THE RESPONDENT:

Kerry Barnes Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Thiele

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bell
Legal Aid Queensland

Orders

IT IS ORDERED

Parental responsibility

The parties have equal shared parental responsibility for S born … May 2004 (the child) in relation to the major long-term issues concerning her, including her education both current and future, religious and cultural upbringing, health and any changes to her living arrangements that may make it significantly more difficult for her to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the child in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
In relation to such consultations:
a.the parent wishing to make a proposal as to a major long-term issue make it in writing to the other parent setting out the advantages of the proposal perceived by that parent and reasoning supporting it
b.the other parent respond in writing to the proposal by either agreeing with it or making a different proposal setting out the advantages of any different proposal and reasoning supporting it
c.if after such consultation on an issue a joint decision is not able to be made the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve the issue.
The parties each be responsible or the child’s day to day care while the child is with each of them.

Parties’ communication

All written communications between the parties concerning the child, including in relation to the parties’ equal shared parental responsibility, be by email or letter.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or postal address and give written communication of any change within 24 hours of such change.
The parties keep each other informed as to his/her landline telephone number and mobile telephone number if any and give written communication of any change within 24 hours of such change.

Information

The parties must notify each other as soon as practicable of any serious accident or injury concerning the child.
The parties must notify each other of the names and addresses of any treating medical or health practitioner the child attends and any hospital the child attends and authorise such to provide to the other at his/her request and expense any information or reports concerning the child provided that this order is sufficient authorisation to do so.
The parties must authorise the child’s school to provide each other at his/her request and expense information concerning the child, copies of school reports school photographs and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Attendance at the child’s school

The parties and their respective partners may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.

Courtesy

The parties must act courteously to each other at all times when in the presence of the child.

Non denigration

The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the child.

Adult issues

The parties must not discuss adult issues with or in the presence or hearing of the child and use their best endeavours to ensure that other persons do not do so.

Allegations in these proceedings

The parties must not raise or discuss with the child the substance of the allegations in these proceedings.

AND IT IS FURTHER ORDERED

Parties’ attendance at courses

The parties each immediately must enrol in and attend a Post Separation Parenting Course conducted by Relationships Australia or the Family Relationship Centre and provide evidence of the completion of such course to the independent children’s lawyer.

Mother’s attendance upon psychiatrist

The mother must:
a.request of her general practitioner, Dr O, referral to a psychiatrist for therapeutic treatment (the treating psychiatrist);
b.provide to both Dr O and to the treating psychiatrist copies of:
i.the report by Dr C, psychiatrist, dated 31 July 2009
ii.the report by Dr M, psychiatrist, dated 16 May 2008 and
iii.these reasons for judgment
c.attend all appointments with and follow all recommendations made by the treating psychiatrist in relation to her treatment including in relation to any prescribed medication
d.request that the treating psychiatrist provide a report to the independent children’s lawyer by 30 September 2011 as to:
i.the mother’s attendance at advised appointments and compliance with recommendations
ii.any diagnosis in relation to the mother and/or clinical observation as to the mother’s response to treatment advised or undertaken
iii.recommendations (if any) as to ongoing treatment for the mother and
iv.any other matters the treating psychiatrist considers relevant, in particular in relation to the mother’s capacity to parent the child if the child should spend unsupervised time with the father
but not so as to include any confidential information imparted by the mother without her written consent as to its inclusion.

Child’s referral to paediatrician

The mother must:
a.request of the child’s general practitioner, Dr O, referral of the child to a paediatrician (the treating paediatrician) for:
i.diagnosis and treatment of the child’s developmenal delays
ii.diagnosis and treatment of the child’s sleep disturbance
iii.diagnosis and treatment of any genital area observations
b.provide to both Dr O and to the treating paediatrician copies of:
i.the two DVDs exhibits 1 and 2 in these proceedings
ii.the two affidavits of Dr G filed 8 May 2009 and 7 September 2009
iii.the Auscript transcript of Dr G’s evidence given on 15 July 2010 and
iv.these reasons for judgment
c.ensure that the child attends all appointments with the treating paediatrician and follow all recommendations of the treating practitioner in relation to the child including in relation to any prescribed medication
d.request that the treating paediatrician provide a report to the independent children’s lawyer by 30 September 2011 as to:
i.the child’s attendance at advised appointments and the mother’s compliance with recommendations for any treatment of the child
ii.any diagnosis in relation to the child and/or clinical observation as to the child’s response to any treatment advised or undertaken
iii.recommendations (if any) as to ongoing treatment for the child and
iv.any other matters the treating paediatrician considers relevant.

AND IT IS ORDERED UNTIL FURTHER ORDER

Child’s living arrangements

The child live with the mother.
The mother and the father’s partner Ms D (Ms D):
a.meet with each other on the Monday immediately following the making of these orders, at the mother’s home, at a time to be arranged between them
b.meet with each other and the child on the next following Monday at the mother’s home at a time to be arranged between them.
The child spend time with the father:
a.on each of the next three Sundays (that is, the first such Sunday to be the Sunday following the Monday referred to in order 20b) between 2.00pm and 4.00pm
b.on each of the following three Sundays between 1.00pm and 4.00pm
c.following that, on Saturdays between 11.00am and 4.00pm (including the child’s birthday on … May 2011) until the last Saturday in July 2011
d.commencing on the first Saturday in August 2011, until further order, between 9.00am and 4.00pm.
All of the child’s time with the father be supervised by Ms D on the following basis:
a.strict “line of sight” supervision for the first eight occasions (the six Sundays and the first two Saturdays) save for short periods not exceeding 10 minutes, for example, for comfort breaks
b.after that “in the vicinity” supervision, meaning that at all times Ms D be close to and aware of the vicinity of the child and the father, save for short periods not exceeding 20 minutes, for example, for necessary excursions to a shopping centre (although for such short excursions Ms D at her discretion may take the child with her).

Changeover

In relation to the time the child is to spend with the father he and Ms D, or Ms D, collect the child from the mother’s home at the commencement of time and return the child to the mother’s home at the conclusion of time.

Child’s telephone communication with father

The father may telephone the child on each Tuesday evening between 6.30pm and 7.00pm by calling the mother’s landline telephone number.
The mother must ensure that the child is available at those times to receive the father’s telephone calls.
Ms D may, if she wishes, participate in such telephone communication.
The father, in relation to all such telephone communication, is to be responsible for its duration according to the child’s response, that is, whether the child appears to be enjoying the communication or otherwise.

AND IT IS FURTHER ORDERED

Further report family consultant

The independent children’s lawyer arrange for Mr P, the family consultant in the matter, to meet with the mother, the father, Ms D and the child (separately or together as he considers appropriate) during the first two weeks of October 2011 and request a further family report to be prepared for release by 31 October 2011.
The matter be listed for mention before the Honourable Justice O’Reilly at 9.30am on Friday 11 November 2011.

Liberty to apply

The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate:
a.if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification
b.if further interim orders are sought.

NOTATION:

The parties are encouraged to consult between 31 October 2011 and 11 November 2011 and if possible agree final consent orders to be made at 9.30am on Friday 11 November 2011.

IT IS NOTED that publication of this judgment under the pseudonym Gillee & Gillee is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10918 of 2007

MR GILLEE

Applicant

And

MS GILLEE

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings concern S born in May 2004 (the child), 6 years and two months at the time of the trial.
Mr Gillee (the father) sought final orders in the terms of his amended initiating application filed on 12 July 2010 (original filed on 13 September 2007) that the parties have equal shared parental responsibility for the child, that she live with the mother and spend graduated time with him as specified in six stages, as follows (amended initiating application, par 5):
5.That the father spend time with the said child, unless otherwise agreed in writing, as follows:
a.Stage 1: For six consecutive Sundays, for no less than three hours to be supervised by the Father’s partner [Ms D];
b.Stage 2: For eight consecutive Sundays, for no less than six hours;
c.Stage 3: For eight weekends, each alternate weekend from Saturday morning until Sunday afternoon;
d.Stage 4: For 6 months, each alternate weekend from Friday after school until Sunday afternoon and for one half of the Queensland Gazetted School Holidays;
e.Stage 5: For 6 months, each alternate weekend from Friday after school until Monday morning and for one half of the Queensland Gazetted School Holidays;
f.Stage 6: For a period of 7 nights a fortnight and for one half of the Queensland Gazetted School Holidays.
As is evident, the father sought that for the first six Sundays the child’s time with him be supervised by his partner Ms D (stage 1); that stages 1 and 2 comprise fourteen occasions of daytime only graduating to overnight time at stage 3; that stages 1, 2 and 3 combined should amount to about five months; and that stages 4 and 5, combined, occupy a further twelve months; with effect that after seventeen months, with the onset of stage 6, there be an equal time order on the week about basis and equal time during the school holiday periods.
By the conclusion of the trial the independent children’s lawyer sought that there be final orders in relation to equal shared parental responsibility, information and other orders, and interim orders that the child live with the mother and spend time with the father, during daytime only, supervised by Ms D. The interim scheme sought by the independent children’s lawyer was very specific with a view to reassessment in June 2011 after, amongst other things, the mother undergoing psychiatric therapeutic intervention, the child undergoing paediatric therapeutic intervention, and further assessment by Mr P, the family consultant engaged in the matter, with a view then to the possibility of supervision ceasing and stages 3-6 of the father’s proposal being introduced by way of final orders.
Mr Thiele of Counsel, for the independent children’s lawyer, presented a very comprehensive set of proposed orders, in substance but not in form which I have recast as follows:
1. The child live with the mother.
2.The mother and the father’s partner Ms D:
(a)meet with each other on the Monday immediately following the making of these orders, at the mother’s home, at a time to be arranged between them;
(b)meet with each other and the child on the next following Monday at the mother’s home, at a time to be arranged between them.
3. The child spend time with the father:
(a)on each of the next three Sundays (that is, the first such Sunday to be the Sunday following the second Monday meeting between 2.00pm and 4.00pm;
(b)on each of the following three Sundays between 1.00pm and 4.00pm;
(c)following that, on Saturdays between 11.00am and 4.00pm until the last Saturday in January 2011;
(d)commencing on the first Saturday in February 2011 (and including the child’s birthday in May 2011), until further order between 9.00am and 4.00pm;
(e)on Christmas Day 2010 between 10.00am and 3.00pm.
4.The child’s time with the father be supervised by Ms D on the following basis:
(a)strict “line of sight” supervision for the first eight occasions (the six Sundays and the first two Saturdays) save for short periods not exceeding 10 minutes, for example, for comfort breaks;
(b)after that “in the vicinity” supervision, meaning that at all times Ms D be close to and aware of the vicinity of the child and the father, save for any short periods not exceeding 20 minutes, for example, for necessary excursions to a shopping centre (although for such short excursions, Ms D at her discretion may take the child with her).
Mr Thiele proposed that there be a psychiatric report in relation to the mother, a paediatric report in relation to the child and a new family report by Mr P, all by 31 May 2011, leading to the reassessment proposed in June 2011.
By the conclusion of the trial, the father’s primary proposal remained that final orders be made as to all matters, but such that the independent children’s lawyer’s proposed interim orders be made as final orders, together with stages 3-6 of the final orders proposed in his amended initiating application filed on 12 July 2010; or in the alternative, if I should be against that, as proposed by the independent children’s lawyer, that is, final orders in some respects, interim orders in other respects, as I have set out, with psychiatric intervention for the mother, paediatric intervention for the child and further assessment by the family consultant all by 31 May 2011 with a further listing of the matter shortly after that.
Ms Gillee (the mother) proposed in her response filed 5 October 2007, and maintained at the conclusion of the trial, that there be final orders that the child live with her; she have sole parental responsibility; the child spend time with the father, supervised, at the Contact Centre on each Sunday between 11.00am and 1.00pm or such other times as may be arranged; the father have “liberal” telephone communication with the child; and there be arrangements made for special days.
As will be seen, the focus at the trial, which resulted in the independent children’s lawyer submitting that interim orders only at this stage should be made concerning the time the child should spend with the father and whether it be supervised or unsupervised, was rooted not only in the formal issues, which I will shortly set out, as to whether, as alleged by the mother, the father had sexually abused the child and whether there is unacceptable risk in the future of such, and whether the mother has a genuinely held belief of actual sexual abuse or of unacceptable risk of future sexual abuse such as might impact upon her ability to parent the child if she should spend unsupervised time with the father, but was made much more complex by the opinion of two psychiatrists, Dr C and Dr M, as to “fixed ideation” by the mother if not amounting to actual delusion. Also, as will be seen, a Dr G, paediatrician, gave evidence that certain features of the child’s genitalia, which at first blush seemed to be delusional on the part of the mother, but which also was observed by her sister Ms F, might in fact exist or have existed as a feature of the child’s genitalia.
Against that background, I will now set out the issues for determination.

The issues

The issues as identified by Counsel at the outset of the trial were:
•whether the father has sexually abused the child
•whether there is unacceptable risk of the father sexually abusing the child in the future
•whether the child’s learning, speech and developmental difficulties, and her demonstrated sleep disturbance, should be the subject of specific orders and further paediatric assessment or left to the child’s school and or community agencies
•whether, if I should determine that the father has not sexually abused the child and that there is no unacceptable risk of sexual abuse the mother has a genuinely held belief that such has occurred and that such risk exists and whether her belief will have significant impact on her capacity, as the residence parent, to parent the child and so impinge on the child’s best interests.

Background matters

The father is 52 years and the mother 54 years.
The father and the mother both live in K.
The father is a foreman, and the mother a registered nurse, each working in K.
Their homes are a very short distance apart, about two kilometres.
They married in May 1997 and separated on 5 May 2006, when the child was almost two years.
The father has repartnered with Ms D, who is 52 years. She was born in Germany, came to live in Australia in 1983 and has lived here since. She was married to her late husband for 27 years. He passed away in November 2003. Ms D and her late husband had no children. The father met Ms D after he separated from the mother. They “kept company for a while” and have lived together as partners since about August 2009.
The mother has not repartnered. However, she has a male friend, Mr J, aged 58, who is a nurse, living “one block away” from the mother’s home in K, with whom the mother has “coffee each day” or “each two to three days”.
As I recall the mother’s evidence, Mr J first met the child when the mother and the father were still together, at a local Festival in about 2004-2005, when the child was “a baby”, which was before the parties’ separation, and that after the parties’ separation she met him again in Woolworths at K. The mother said that the child calls Mr J “JJ”. The mother said that she called him “Dad” “ages ago” but that the child understands that the father is “Daddy”, and refers to the father as “Daddy”.

Notice of Child Abuse

On 21 January 2009 the mother filed a Notice of Child Abuse containing the following:
1.That in the month of October 2004, the Father did an act, unknown in its exact nature by the Mother, to the parties’ daughter, [S], then 6 months of age, which resulted in redness to the child’s vaginal area, and left a small black hole about 0.5cm wide at the top of the child’s vagina.

Allegations of abuse/allegations of disclosures of abuse (ex 12):

The independent children’s lawyer has prepared a schedule of allegations of abuse/allegations of disclosures of abuse, which it is convenient to set out:

Sometime before 17 October 2004	The Father did an act, unknown in its exact nature by the Mother to the parties’ daughter which resulted in redness to the child’s vaginal area and left a small black hole about 0.5cm wide at the top of the child’s vagina	Notice of Risk of Abuse filed 21.01.09 Affidavit of Mother 31.10.08 p15 to 20 inclusive And Affidavit of Mother filed 8 June 2010 p 2
Unparticularised dates between October 2004 and February 2005	Mother finds small black hairs in her nappy. Unclear to the ICL; a. Whether Mother alleges pubic hair or otherwise; or b. Whether Mother alleges discovery of hairs equates Fto child having been sexual abused by Father on those occasions	Affidavit of Mother 31.10.08 p 25 and 71
November 2005	Mother alleges observing Father with “both hands down the front of [child’s] nappy”	Affidavit of Mother 31.10.08 p72
May 2006	Mother alleges child demonstrating she was a ballerina and Father “swiped his hand up very quickly between her legs”. Mother alleges this to be “a disturbing incident”	Affidavit of Mother 31.10.08 p71 Affidavit of Father 15.06.10 p4.5 and 4.7(a)
Late 2007 or early 2008	Mother observes child in bathroom with no clothes during a short period of time when she was not supervising Father with child	Affidavit of Mother 31.10.08 p73 Affidavit of Father filed 15.06.10 p4.5 and 4.7(a)
31 August 2008	Mother alleges child (then aged 4 1/2 ) makes a disclosure that Father had done something to her upon leading question of Mother	Affidavit of Mother 31.10.08 p74
22 March 2009	Mother alleges Father changes child’s pants during supervised time when he was unsupervised	Affidavit of Mother 8.06.10 p56.2
3 May 2009	Mother alleges child (then aged 5 ) makes a disclosure that Father had done something to her upon leading question of Mother	Affidavit of Mother 8.06.10 p 56.3
19 July 2009	Mother alleges inappropriate touching by Father. Reported to [K] Hospital	Affidavit of Mother 8.06.10 p566.4

History of child’s time with the father including cross reference to interim orders

The independent children’s lawyer has prepared a schedule of time the child has spent with the father both before and after the separation, cross referenced to the interim orders made in the proceedings for the child to spend time with the father (ex 11):

Period	Arrangements	Reference
Period 1 Birth to October 2004
[…] May 2004	Date of birth of [the child] Mother primary carer until returns to work, Father working full-time as [foreman], working long hours	Affidavit of Mother 31.10.08 p15
October 2004	Mother alleges first instance child left alone with Father	Affidavit of Mother 31.10.08 p 16
Period 2 October 2004 to February 2005
October 2004	Mother unsure of frequency child left alone with Father. “Upon returning home I always changed [the child’s] nappy almost immediately and on each of these occasions, I found small black hairs in her nappy” and “It was only when I had no one else to leave [the child] with that I would leave her with her Father. “	Affidavit of Mother 31.10.08 p25 and 26
February 2005	Mother commences working 3 days per week, Wednesday, Thursday and Saturday. Child cared for ABC Daycare on Wednesday and Thursday and usually maternal grandmother cared for child otherwise	Affidavit of Mother 31.10.08 p 15 and 25
Period 3 February 2005 to 5 May 2006
Mother alleges using her sister or her parents when Mother working and otherwise daycare unavailable. “However, there were times when the Father did have to mind [the child]. That was after I had exhausted all known persons”	Affidavit of Mother 31.10.08 p 27
13 March 2006	[The child] commences with day care mother ([Ms H])	Affidavit of [Ms H] 4.11.08 p3
5 May 2006	Parties agree separated. Father remains in former matrimonial home, Mother and child move to paternal grandfather’s residence	Affidavit of Mother filed 31.10.08 p4,5 and 45
Period 4 5 May 2006 to 12 February 2008
[Child] spends time with Father each weekend supervised by the Mother or a maternal grandparent	Affidavit of Mother 31.10.08 p12
May to June 2006	Father spends time with [child] once per week at residence of paternal grandfather	Affidavit of Mother 31.10.08 p45
June 2006 to end of July 2006	Father spends time with [child] at Mother’s residence 2 to 4 times per week for 1 to 2 hours supervised by Mother	Affidavit of Mother 31.10.08 p45 Affidavit of Father 15.06.10 p3.1(a)
August 2006 to first week of September 2006	Father moves out of former matrimonial home to rental unit and Mother and child move back into the former matrimonial home. Father spends no time with child as Mother on holidays	Affidavit of Mother 31.10.08 p46, 47
September 2006	Father spends time with [child] 2 to 3 times per week at the home supervised by the Mother	Affidavit of Mother 31.10.08 p 48
First week October 2006	Father spends ½ hour only	Affidavit of Mother 31.10.08 p48
Remainder of October 2006 to Christmas 2006	Father spends no time with child	Affidavit of Mother 31.10.08 p48
Christmas 2006	Father spends the afternoon with child supervised by Mother	Affidavit of Mother 31.10.08 p 48
Throughout 2007 until proceedings commences	Father spends time each week save for a few occasions when child sick. Mother alleges time spent usually two hours supervised by her.	Affidavit of Mother 31.10.08 p49 and 50
13 September 2007	Father commences proceedings
12 February 2008	Order – FMC - Father spend time with [child] on a supervised basis for 3 hours each Sunday	Order 12.02.08
Period 5 12 February 2008 to 18 June 2008
18 June 2008	Order – FMC – Father spend time for a period of up to 6 hours each Sunday	Order 18 June 2008
The Father has spent time with [the child] as ordered by this Court	Affidavit of Mother 31.10.08 p63 Affidavit of Father 15.06.10 p3.2(a)
Period 6 18 June 2008
But for one month in 2009 and for a period of two weeks sometime prior to 2009 the Father has spent time in accordance with the Order for periods of only 3 hours. Venue alternates between maternal grandparent’s homes	Affidavit of Mother 24.06.10 p 4(b) and Affidavit of [maternal grandmother] filed 9 June 2010 p 4 Affidavit of Father 15.06.10 p3.3(c)

The evidence

The father relied on affidavits by himself and Ms D.
The mother relied on affidavits by herself, Ms F (her sister), Ms H (the child’s daycare mother), her mother (the maternal grandmother) and Dr C (psychiatrist).
The independent children’s lawyer relied on a report by Ms L (social worker) dated 5 February 2008, two reports by Mr P (family consultant) dated 19 January 2009 and 17 June 2010, a report by Dr M (psychiatrist) dated 16 May 2008 and two affidavits by Dr G filed 8 May 2009 and 7 September 2009.
In addition, the parties relied on documentary evidence (exs 1 – 13) which included two DVDs (exs 1 and 2).
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully.

Principles relevant to parenting orders

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·parents should agree about the future parenting of their children; and

·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;

and:

·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

·allows the child to be involved in occasions and events that are of special significance to the parent,

although regard may be had to other matters.

Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and

·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

·the impact that an arrangement of that kind would have on the child; and

·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

Principles relevant to findings of sexual abuse

In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

Approach to the analysis of evidence relating to sexual abuse disclosures

In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred … .

Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.

Principles relating to unacceptable risk of sexual abuse

In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act [now s 65E] and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. … ;
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.;
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)
In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.
In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.

The evidence and findings in relation to the sexual abuse allegations

Redness and black hole

It is convenient to deal first with the mother’s and Ms F’s “redness” and “small black hole” descriptions, which lead the mother to allege sexual abuse by the father “sometime before October 2004”. In October 2004 the child turned 5 months. A summary of the descriptions is contained in ex 13. The mother excluded nappy rash in relation to the redness, referring to her experience as a registered nurse to know the difference between nappy rash and redness which is not nappy rash. The mother said that nappy rash usually has “irregular edges” and “blotches” and sometimes “raised areas”, whereas the redness she observed was “even and all one colour”. She agreed that whilst such could indicate infection, usually infection has a “primary” area. The red area was warm not hot. The area of redness was the labia and perineum. The mother said she observed the redness, and also a “small black hole”, about ½ cm diameter at the apex of the vaginal area, which she depicted by a sketch, ex 6. The mother’s observations were first made on a morning after she had left the child with the father for about 1 hour between 6.00pm and 7.00pm while the mother had gone grocery shopping. When she returned the father had a “really guilty look on his face”, which at the time she put down to the circumstance of the child crying and that he was “not coping with her”. After she put the groceries away the mother took the child to bed at about 8.00pm. The child’s nappy was not wet and not in need of changing. The mother said she had bathed and dressed the child before she had gone out. In the morning the child was crying. The mother changed the child’s nappy. The child frowned and kicked when she tried to remove her nappy. This had not happened before. For all prior nappy changes the child “just lay there”. This time she had a “real staring frown”. On changing the nappy the mother noticed the redness and the small black hole, which had not been there the previous night when she had bathed and dressed the child prior to leaving her with the father while she went shopping. The mother said the black hole was “nasty” and she “went into shock” at the sight of it, and for about the next week “I went through it in a trance like state”. Ms F, who is also a registered nurse, changed the child’s nappy on the day of her christening. She gave a similar description, using the term “dark pink” rather than red for the labia area and said that the hole struck her as “unusual”, but as the mother, her sister, had not mentioned it to her she thought she should not be concerned. Ms F depicted her observation in a sketch, ex 10.
The mother said that the morning on which she first noticed the redness and the hole was “around 21 September 2004”. The christening, when Ms F made her observation, was 17 October 2004. There are a few inconsistencies between the mother’s evidence and Ms F’s evidence. For example, the mother said the redness remained “for about a week”. Plainly enough, if the redness had gone within a week, Ms F could not have seen it, unless the mother’s date of initial observation should be inaccurate. There is however no reason to doubt the women’s descriptions of what they saw. The mother said that the hole remained for “more than three weeks”. In my view, even if the mother’s date of initial observation be accurate, 17 October is not so long after 21 September as to not meet the description of “more than three weeks” in relation to the observation by both women of the small black hole.
It appears by other evidence that the child may have had a “fused labia”, the subject of other evidence.
The mother did not tell her general practitioner about what she observed until about 1 year later, and did not report it until about February 2006. Her inaction was because she thought that if she went to her general practitioner “the whole town would know what happened to my daughter”, that is, the conclusion to which she had come, that during the one hour period while she was out shopping the father had sexually abused the child. The mother said that whilst initially she had thought the father’s look of guilt was because he was “not coping” with the child, who was crying when she returned from shopping, she realised later that the look of guilt was “because of what he had done to her”.
In February 2006, when the mother told Ms F that the father had “interfered with the child”, Ms F said she was “not surprised” because of “gut reactions people get that you can’t define in writing”, and because of an “inner knowing” and “a feeling”.
The father denies that he touched the child inappropriately. His recollection of the “shopping” evening is sketchy, which may not be surprising, in that he had no reason specifically to recall it until told of the allegation against him about 1 year later. He recalled that the child was crying that evening and that he was unable to console her. He did the best he could by picking her up and walking around with her until the mother got home. He could not say whether that evening was September 2004, October 2004, or some other time. The father said that he may have changed the child’s nappy during the mother’s absence. He said in his trial affidavit that the child “was in the habit of kicking when her nappy was changed”, but he always regarded that as “playful banter”, and that he could recall “an occasion” when the child had redness in her vaginal area which he had put down to “nappy rash”, but that he did not know also whether this was September 2004, October 2004, or some other time.
The mother said that the child’s nappy would not have required changing so soon after her bath time and, as mentioned, that she next changed the child’s nappy the following morning. It will be recalled also that the mother said it was not characteristic for the child to “kick” at nappy changing time, but that usually she “just lay there”, which plainly enough is different from the father’s evidence about this.
The mother asked the father “about 7 months” after September/October 2004 “Did you hurt [the child]?”. His response was “Recently?”. The mother took this as an admission of guilt. The father said however that he had in mind an unrelated bath incident which had occurred much earlier and his response was in that context.
Dr G, a very experienced paediatrician, who has had post graduate training in forensic paediatric medicine, provided two affidavits and was shown exs 6 and 13. He said in his first affidavit (filed 8 May 2009):
12.The statement by mother indicates redness in the genital area and the presence of a hole above the vagina. The finding of redness in the genital area is related to dilation of the blood vessels in the skin. This can be due to a number of causes such as injury, infection, nappy rash or other dermatological condition (eg dermatitis). The hole observed above the vagina could correspond to the urethra, which is the opening of the tube leading from the bladder. This can have the appearance of being an open hole if the muscles around the urethra are relaxed. It does not necessarily indicate an abnormality. The other possible explanation for the hole is that it is in fact the actual opening to the vagina. The size of the vaginal (or hymenal) opening can vary depending on the state of relaxation of the pelvic muscles in the child.
He described a “fused labia” as “very common in girls”, and as a “layman’s term” for the labia minora (“inner lips”) which can “stick together”, because of urine, faeces, nappy rash or other causes, but then separate, but that this usually ceases once a child is out of nappies. The “sticking together” can have associated redness. He said that if the labia are fused, “putting a cream in”, or “rubbing a finger”, “could separate them and create a hole”, and that “spreading the legs wide could stretch it”: transcript 15 July 2010, Dr G, pp13-15.
Dr G said in effect that there are many plausible explanations for the mother’s and Ms F’s observations other than sexual interference, and that (p14):
…even medical staff, unless they are dealing with the area, are not good in the genital anatomy of young children.
Right, I see? --- And we are plagued with this, and that’s why we try and have minimal – a limited number of people doing sexual assault examinations because of over-interpretation of normal anatomy if it’s not something you see day in, day out.
Yes? --- And so it’s not for me to say if an individual is very good with knowledge of genital anatomy of little girls, ie, mum and her sister being nurses, but I know from my own experience doctors are not very good at this either. (emphasis added)

The following extract from Mr Thiele’s written submissions is a useful summary of the effect of Dr G’s evidence, in relation to the summarised condition in ex 13 (including that the labia had “puckered”, that the hole had “the appearance of a well”, the base of which was “not visible” and that it was “black like a deep well” but “not the skin was black”) and the mother’s sketch ex 6:
29.2.Despite reading or hearing evidence of Dr [G] that the Mother’s observations forming Exhibit 13 could be the result of inappropriate touching of the child, they were also:
29.2.1.Consistent with injury, infection, nappy rash or other dermatological condition (eg dermatitis);
29.2.2.The child having a fused labia could add weight to that possibility;
29.2.3.An ordinary anatomical variation of the vaginal region and that the hole observed was either the urethra or the actual opening of the vagina.
In my view, the evidence does not provide any basis to find that the father sexually abused the child on the evening described by the mother in September 2004. In so concluding, I have carefully examined the written and oral submissions of Mr Hodges of Counsel, for the mother, urging that a finding of actual sexual abuse be made. I have taken into account also the child’s “self stimulating” as described in evidence by the mother and as shown in the two DVDs exs 1 and 2. In short, Dr G said that whilst the child’s sleep disturbances as seen in the two DVDs “appear to be self stimulation”, such is “not uncommon in young children”, and “more common in children with developmental delays”. Dr G detailed in his affidavit filed 7 September 2009 the child’s history not only of developmental delay but of a formal intellectual assessment in December 2008 which had revealed “that she was functioning in the range of intellectual impairment”. He said that “self-stimulating behaviours can be a normal part of childhood development”, that on the history provided to him “it does not appear that this behaviour would be considered abnormal or deviant behaviour”, but that “I am unable to say with any certainty that this behaviour is related to previous sexual abuse.” In his oral evidence, Dr G said that “deviant or abnormal” self stimulation is “more an indicator, a marker” of sexual abuse, but in relation to the child he would look at “the whole picture” of her being a child with developmental delay, so that her self stimulation may well be “part of that”, “like someone going to sleep and sucking their thumb” or “playing with their hair or cuddling a toy”: transcript pp7-8.
Having determined that the evidence cannot support a finding of sexual abuse in September 2004, I turn now to the separate question of whether I should make the finding that no sexual abuse occurred on that occasion.
Whilst I am strongly of the view, as the trial judge, having read and heard all of the evidence, that it is more probable than not that what the mother and Ms F observed in the child’s genital area was simply an aspect of “normal anatomy”, as described by Dr G, the circumstance that he said that what was observed “could” be the result of inappropriate touching has effect that I ought not make the positive finding that no abuse occurred. However, I will make the observation that on all of the evidence such is so unlikely as to almost certainly not to have occurred, for two principal reasons. First, Dr G said that what the mother and Ms F described is capable of being “normal anatomy”. Secondly, the mother gave cogent evidence that she had bathed and dressed the child for bed, probably in a “jumpsuit”. She would have noticed, I think, on changing the child’s nappy in the morning, if it had been not as she had put it on. Further, although the father said he may have changed a nappy, it seems to me, given the mother’s “shock” that morning, and immediate suspicion of the father, that if the father had changed a nappy, the mother would be likely to have seen the one changed, on the change table, or somewhere, and included evidence about that.
These circumstances lead me to the conclusion that no sexual abuse occurred. However, I will stop short of a formal finding, for the reason only of Dr G’s evidence that what the mother and Ms F described “could” have been the result of inappropriate touching, although all of the circumstances of the case indicate strongly against that.

Black hairs

The mother observed two “black hairs” in the child’s nappy, sometime between October 2004 and February 2005. The mother infers that they are the father’s pubic hair. The father has dark chest hair. He gave evidence of an occasion of changing the child’s nappy after a shower, with no shirt on. There is no evidence to suggest that the father’s pubic region came into contact on any occasion with the child’s genital area. There is no evidence that the hairs were pubic hair rather than chest hair.
The evidence does not provide any basis to find sexual abuse.

Child’s avoidance of males

Dr G said that the child’s history of being withdrawn and “afraid” of males is a “non specific behaviour”, which could arise for a number of reasons, especially having regard to the child’s developmental delays.
If the child has “male avoidance”, such does not provide, either of itself, or in conjunction with any other of the evidence, any basis to find sexual abuse.

Hand’s down front of child’s nappy

The mother alleges that in about November 2005, she “saw the father had both hands down the front of [the child’s] nappy”, and that “as soon as he saw me, he removed his hands.” She asked him what he was doing, and he replied “I was just checking to see if she was wet”. She said to him “You don’t have to check like that, you only need to check on the outside.”
There is no reason to doubt the father’s explanation.
The evidence does not provide any basis to find sexual abuse.

Ballerina incident

The mother alleges that the child was demonstrating to the father “how she could be a ballerina”, and that the father “swiped his hands up quickly between her legs”. The mother was present. She says “He appears to have forgotten I was there”, and “quickly turned around to see if I had observed what he had done.”
It is unlikely that the father would have touched the child inappropriately in the mother’s presence. There seems to be nothing in the mother’s allegation. As will be seen, by this time the mother had developed “with almost delusional intensity” the “fixed idea” that the father was an abuser of the child: report Dr M, “Opinion”, p8.
The evidence does not provide any basis to find sexual abuse.

Balance of matters in ex 12

These include allegations by the mother of observing the child in the bathroom with no clothes on while she was “not supervising” the father and the child; alleged disclosure by the child as the result of leading questions by the mother; other vague allegations; and suggestions of sexual abuse by other circumstances such as the child “tongue kissing” the mother.
The evidence does not provide any basis to find sexual abuse.

Conclusion

The result of my analysis of the evidence is that there is no basis to make any finding that the father has sexually abused the child.
I would make the positive finding that the father has not sexually abused the child, but for the reasoning I have provided already in relation to Dr G’s evidence concerning the child’s anatomical presentation to the mother and Ms F. However, the observations I have made, I hope, are powerful to dissuade the mother from her “fixed idea” that on 21 September 2004, or at any time in September/October 2004, the father sexually abused the child.

Unacceptable risk

The conclusions to which I have come concerning alleged sexual abuse of the child have effect that, readily, I conclude there is no identifiable risk of sexual abuse of the child by the father.
It follows that any analysis of the “detriment/benefit” balance does not arise.

The statutory matters

The child’s best interests

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.
Dr M said that, if it were not for the allegations of sexual abuse, there is no reason why the child should not enjoy a meaningful relationship with both of her parents.
Much will depend, in relation to whether the child is able to have a meaningful relationship with each of her parents, upon whether the mother can move on from her “fixed idea”, held with “almost delusional intensity” (Dr M) that the father has sexually abused the child.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

I would refer to my analysis above. In my view, there is no need for protection of the child from harm by the father.
The question whether the mother is subjecting the child to emotional abuse, by her ideas and possible delusion, was not the subject of intense evidence at the trial.
Rather, the focus, as will be seen, was for the mother to have therapeutic psychiatric assistance in relation to her beliefs.

Section 60CC(3) – the additional considerations

Any views expressed by the child

The child is too young to express views.

The nature of the child’s relationships

Ms L and Mr P observed that the child is attached to both of her parents and, in particular, Mr P observed that the child has “good proximity” with the father and did not display anxiety or avoidance behaviour with him.

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

The father has the ability, it would appear, to facilitate and encourage such, despite criticism of him for having an “ego-centric” persona for expressing that he is “tired of being labelled a paedophile”, instead of a more child-focused disposition, leading Mr Thiele of Counsel, for the independent children’s lawyer, to submit that at the trial the father showed a “distinct lack of insight and child-focus”: Mr Thiele’s written submissions, pars 30-31.
The mother presently has no ability to facilitate and encourage a close and continuing relationship between the child and the father. However, with therapeutic psychiatric assistance, the possibility of this is not to be foreclosed, particularly if with therapeutic intervention she may be able to be assisted to cease her “fixed idea” of sexual abuse having occurred, with the therapist having ability to include reference in the therapeutic sessions to these reasons for judgment.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other child or person (including any grandparent or other relative of the child) with whom he or she has been living

The father, presently, does not seek that the child live with him, but that she spend graduated time with him, initially supervised, leading to unsupervised, in accordance with the stages 1-6 proposal previously mentioned.
There is no present reason to think that the child would not cope with graduated time as proposed by the father, leading ultimately to unsupervised time, or graduated time as proposed by the independent children’s lawyer, subject to the mother’s ability to cope with that so as not to have significant impact on her parenting capacity and so impinge on the child’s best interests.

Practical difficulty and expense

The parties live in close proximity to each other in K.
This matter, thus, did not assume significance at the trial, if the child should spend time with the father in K.
The mother’s proposal that the child spend time with the father at a contact centre, the nearest to K being at O, would involve considerable practical difficulty, K and O being about 2 hours driving distance apart, and would also involve cost, both of petrol and contact centre fees.

The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs

The father’s capacity in relation to the child’s emotional needs is untested, because of the history of the matter.
I have referred already to criticisms of the father by Mr Thiele.
The mother’s capacity in relation to the child’s emotional needs is unexplored, save for the observations as to her “fixed idea” of sexual abuse, as explained. It remains to be seen whether the “fixed idea” might impinge upon her capacity to provide for the child’s emotional needs.
There is little evidence as to the capacity of either of the child’s parents to provide for her intellectual needs. I have mentioned already the child’s assessed intellectual impairment.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

I have referred already to Dr G’s observations as to the child’s developmental delays and assessment in 2008 as to “functioning in the range of intellectual impairment”.
The child has speech difficulties.
There is evidence of the potential for involvement of specialist assistance for her, namely by Dr I, who is the child’s treating paediatrician.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

This has been sufficiently canvassed.

Family violence involving the child or a member of the child’s family or family violence order

There has been no reported domestic or family violence between the parties which has assumed significance at the trial.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The father and the mother, as I have outlined earlier, each sought final orders, the father for supervised time leading to unsupervised time, and the mother that all times which the child spends with the father be supervised at the Contact Centre. The independent children’s lawyer, as I have outlined, proposed that final orders be made in some respects, and interim orders only in other respects, including in relation to the child’s time with the father; and that the mother and the child have intervening therapeutic intervention, with specified purposes.
In my view, the circumstances are such that it is not preferable to make final orders in relation to the child, other than in relation to the specific matters proposed by the independent children’s lawyer.

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

It is necessary to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with and communicate with the child and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the child and spending time with and communicating with the child and has fulfilled or failed to fulfil the parental obligation to maintain the child.
All of these matters have been sufficiently canvassed, save for the observation that the father, on the evidence which I accept, has paid all assessed child support.

Other matters

Mother – Russell & Close argument

I turn now to the issue of whether the mother has a genuinely held belief that a risk of sexual abuse by the father of the child exists and whether that will have a significant impact on her capacity to parent the child and so impinge on her best interests.
A v A (1998) FLC 92-800 continues to be the leading authority as to this issue, as set out by the Full Court at [3.27]-[3.29]:
3.27It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that Judge would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in Russell and Close (25 June, 1993, unreported but frequently referred to in this area) demonstrated: see also, for example, Re Andrew (1996) FLC 92-692, which has some similarities with this case.
3.28If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.
3.29It appears to us that his Honour’s approaches confused these two aspects. The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance. The approach of his Honour of determining whether the wife had a genuine and objectively valid belief in the events giving rise to her concerns is to confuse these two separate issues. The result is, in our view, that his Honour’s approach was erroneous.
As the first of those paragraphs makes clear, it is only in cases where the trial judge reaches a conclusion that objectively there is no unacceptable risk that he or she would need to turn to the separate question of a belief in the occurrence of the events in question, as a separate matter.
In Russell & Close [1993] FamCA 62 the Full Court at [35] and [38] said:
35.The trial Judge, as we have said, made a specific finding of fact that it was unsafe for the husband to have overnight access at present, as the wife would use such occasions to make more allegations against him. She also concluded that it would not be to the children's benefit to run the risk of subjecting them to "a hysterical and deliberate pattern of behaviour" by the wife in relation to such further allegations, which would cause "further scenes to which overnight access would lend fuel".
36.Counsel for the husband contended that there was no evidence before her Honour to support either of those conclusions. He submitted that there was no evidence of any hysterical behaviour by the wife outside the court, and no evidence that the children had been affected adversely to date by any statements or actions of the wife. He submitted that it was a "quantum leap" for her Honour to move from the wife's admitted hysterical comportment in the courtroom (during cross-examination about her raising of the sexual abuse allegations) to a conclusion that she would behave hysterically outside the court-room, on or in relation to access occasions, if the husband were granted overnight access, and that such hysteria would impact adversely upon the children's welfare.
37.Her Honour had the unique advantage of hearing and observing the behaviour and demeanour of the wife in the courtroom during the proceedings, and particularly whilst she was under cross-examination. That advantage is of even more significance in this case than it is in most appeals because a copy of the transcript of the proceedings before her Honour was not included in the Appeal Book. We do know, from passages in her Honour's judgment, that the wife at times behaved quite uncontrollably and inappropriately during the hearing. For example, at p 10 of the Appeal Book her Honour refers to the fact that the wife "several times became excessively antagonistic and from the witness box became verbally aggressive towards the husband to the extent of interrupting the hearing". Similarly, at pp 26-27 her Honour recorded that "the wife at times also very obviously became tearful when she seemed not to want to answer a question directly", and that "at other times in evidence her tears seemed to be more those of anger and she became very hysterical and aggressive in her words, manner and gesture in court, mainly towards the husband, but occasionally towards his counsel". At p 33, her Honour referred to the fact that the children "have to live with a mother who can be extremely hysterical and with a step-father who appeared on his evidence to be antagonistic and also uncharitable towards the husband".
38.Judges are entitled, and are frequently called upon, to draw inferences as to the likely future behaviour of a party to proceedings from that party's past behaviour, as revealed by evidence in those proceedings. There is no difference, in principle, between behaviour of a party as revealed by evidence in the proceedings and behaviour of that party as revealed to the court directly in the course of the proceedings. No doubt when considering whether the behaviour of a party in court during the hearing of proceedings is a reliable guide to likely future behaviour by that party out of court, a judge will take into account the context in which the former behaviour occurred, and make due allowance for the fact that the surroundings and atmosphere of the courtroom are novel and perhaps stressful for the party and quite different from the context in which the party normally functions. Nevertheless, we are of the opinion that it is open to a trial judge to draw inferences as to a party's likely future conduct in another context from the conduct which that party has displayed in the courtroom during the hearing of the proceedings. That is what her Honour did in this case, and we are unable to conclude that, in doing so, she erred in any way. (emphasis added)

Despite the observations highlighted, several Full Court decisions since Russell & Close have referred to the need for expert evidence in relation to the second limb as described in par 3.29 in A & A, that is, whether a party’s belief will impact on his/her capacity to parent a child and so impinge on the child’s best interests. See, for example, Fitzpatrick & Fitzpatrick [2005] FamCA 534 at [65]; Aldridge & Keaton [2009] FamCAFC 229 at [143]:
143. The evidence before the Chief Federal Magistrate did not disclose this case to be one which fell to be determined having regard to the principles discussed in Russell & Close (unreported, Family Court of Australia Full Court, 25 June 1993) and A & A (1998) FLC 92-800. There was no expert evidence that the mother’s parenting would be so compromised that she would be unable to effectively parent the child.
I have determined already that there is no identifiable risk of sexual abuse by the father of the child.
The expert evidence is that the mother’s belief of sexual abuse having occurred, and that it may be likely to occur, if the child should spend unsupervised time with the father, is “fixed”.
I have referred already to Dr M’s evidence as the mother’s “fixed idea”, with “almost delusional intensity” of the father having sexually abused the child.
Dr C expressed a similar view of the mother, describing that any “depressive symptomatology present”, in his view, “is likely to be secondary to a primary delusional process” (report Dr C, pp 9-10).
Mr P, the family consultant, said that the mother “is consumed by the beliefs she holds” (first report, Mr P, par 31).
Dr C said that in his opinion the mother would “cope poorly with a situation where the father was given unsupervised time”, and that such would be likely to have deleterious effect on her mental health” (report Dr C, p 10).
I need little encouragement to conclude that if the mother should “cope poorly” with unsupervised time with the father, such would impinge on the child’s best interests. Indeed, Dr C said in his oral evidence to the effect that, without the benefit of therapeutic intervention, if the mother became acutely unwell, that “clearly” would impact upon the child.

The need to follow the “statutory pathway”

The “statutory pathway” has effect that I am obliged to consider the aspect of parental responsibility for the child, before considering her living arrangements. This is an oddity in the current legislation. However, I am obliged by the legislation to consider the “statutory pathway”.

Parental responsibility

The statutory presumption applies, according to the facts as I have found them.
There is no reason, having regard to the evidence in the case, to oust the statutory presumption.
Accordingly, I will make a final order, as proposed by the father, and the independent children’s lawyer, that the parties have equal shared parental responsibility for the child.

Equal time

The circumstance that I will make an order for equal shared parental responsibility has effect that I must consider whether an equal time order is in the child’s best interests, and reasonably practicable. The circumstances of the case, demonstrably, without further reasoning, are such that an equal time order is impossible to consider, other than necessarily and briefly, having regard to the particular facts of this case, and indeed was not proposed by the parties or the independent children’s lawyer.
In these circumstances, it is not necessary for me to consider whether an equal time order is reasonably practicable.

Substantial and significant time

I would make the same observations as made in relation to equal time.

What order, then, is in the child’s best interests?

I have referred to the parties’ and the independent children’s lawyer’s proposals.
I have considered the submissions of Ms Lyons of Counsel, for the father, Mr Hodges of Counsel, for the mother, and Mr Thiele of Counsel, for the independent children’s lawyer, in support of their respective proposals, and carefully considered their submissions in light of the evidence.

Analysis and decision

It is significant that I have determined that the evidence does not support any finding that the father has sexually abused the child, but significant also that the mother has the “fixed idea” that he has, and that absent therapeutic intervention the mother’s “fixed idea” is such that she would “cope poorly” if the child were to spend unsupervised time with the father.
It is significant also however that, despite the mother’s “fixed idea”, presently there is the prospect that she can shift from that, with therapeutic intervention, as proposed by the independent children’s lawyer; and that in the closing phase of the trial the mother expressed willingness to meet with Ms D, the father’s partner, to discuss matters with her, with the objective of the mother “feeling comfortable” with Ms D as an interim supervisor. In my observation, the mother was impressed with Ms D, as indeed was I, as a “no nonsense” woman, aware of the obligation of supervision, regardless of her own belief that the father is not a sexual abuser of the child. Ms D, I must observe, impressed me greatly as a witness, and as a person who would not “shield” the father if she saw or had any observation of sexual abuse or its potential.
It is significant also that the Court, clearly, will strive to make final orders, if possible, in relation to children’s best interests, but that sometimes that objective must yield to interim orders being made even after a full trial.
In my view, this is such a matter.
I have carefully considered the draft orders proposed by the independent children’s lawyer, as amended during argument on the last day of the trial, with the tacit consensus of the father and the mother if I should determine, despite their submissions to the contrary, to make orders based upon those proposed by the independent children’s lawyer.
Without more, I am satisfied that the child’s best interests will be met by my making orders as proposed by the independent children’s lawyer, some of which are final orders, and some interim.
The dates in the draft orders proposed by the independent children’s lawyer differ from the dates which I will include in the orders which I will make, plainly enough, for the reason that the trial was conducted in July 2010, with judgment delivered in December 2010. The integrity of the scheme underlying the orders, I hope, nonetheless accords with the independent children’s lawyer’s proposal in relation to timeframe.
I would add that it is to be hoped that the orders which I will make will facilitate the bringing in of final consent orders in November 2011.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.

Associate:

Date: 17 December 2010

[2010] FamCA 1141

17 December 2010

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